Opinion
E077955
08-10-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES MARCUS CORONADO, Defendant and Appellant.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Alan Amann, Alana Cohen Butler and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF103231. Bernard J. Schwartz, Judge. Reversed and remanded with directions.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Alan Amann, Alana Cohen Butler and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant James Marcus Coronado appeals from an order denying his petition for resentencing under Penal Code former section 1170.95. After issuing an order to show cause on defendant's petition and conducting an evidentiary hearing, the trial court found the People had proven beyond a reasonable doubt that defendant could still be convicted of second degree murder under various theories-that defendant aided and abetted the actual shooter in the murder; that he conspired with the actual shooter; and that he was a major participant in the crime who acted with reckless indifference to human life. While this appeal was pending, the California Supreme Court clarified the law regarding second degree murder liability on a theory of directly aiding and abetting implied malice murder. (People v. Reyes (2023) 14 Cal.5th 981 (Reyes).) Because the record indicates some confusion as to the legal requirements for conviction under that theory, we reverse and remand for reconsideration.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All undesignated statutory references are to the Penal Code.
I.
FACTS
We take the basic facts of the underlying offense from this court's opinion in defendant's direct appeal from the judgment (People v. Coronado (Nov. 20, 2007, E040884) [nonpub. opn.]), of which we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Cal. Rules of Court, rule 8.252(a).)
At the evidentiary hearing on a petition for resentencing under section 1172.6, the trial court "may . . . consider the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); see People v. Clements (2022) 75 Cal.App.5th 276, 292 ["[T]he Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a [former] section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing."].) We summarize the factual statement from the prior appeal merely to provide context for the trial court's ruling and the parties' appellate arguments, and do not rely on the factual statement to resolve the issues presented in this appeal.
On the evening of January 15, 1993, as K.N. drove on Central Avenue in a rural area of Wildomar, she noticed a Camaro parked with its lights off and all its doors open. She saw two men get into the car and a third man lying on the ground near the back of the car. After driving past the Camaro, K.N. turned around to look again but, by the time she returned, the Camaro was gone. The third man (later identified as the victim) was still lying on the ground and was not moving. K.N. called 911, and the police arrived shortly thereafter. The police found the victim's body on the side of the road. He had been fatally shot three times at close range, twice in the neck and once in the chest.
The murder remained unsolved until August 1999, when T.G. came forward with information she had learned from her ex-husband, C.G. She had waited until her grandmother died to disclose the information because she feared retribution against her grandmother. C.G.'s family had threatened to harm T.G. and her grandmother if she said anything about the murder.
C.G.'s family founded the Elsinore Vatos Locos (EVL) gang. C.G.'s oldest brother, J.G., was president of EVL. When J.G. was incarcerated, another brother (C.L.G.) took over.
In August 1999, T.G. told Investigator Johnson that, on January 15, 1993, C.G. drove T.G.'s Camaro to a party where the victim was giving EVL members free tattoos. C.G. returned the next morning around 3:00 a.m. and washed his clothes in the sink. Later that morning he washed T.G.'s car. These were unusual activities for C.G. T.G. found a tattoo gun in the sub-flooring of her car. C.G. told her the victim had given it to him.
Later that day, T.G. overheard C.G., defendant, and another person talking in the garage. From the kitchen, about 20 feet away, she heard C.G. say he had shot the victim. Defendant told C.G. not to let T.G. find out. Defendant added that they shot the victim a few times and he was certain the victim was dead.
When T.G. later confronted C.G. with what she had overheard, C.G. told T.G. that he and defendant shot the victim because he was a snitch. He also told her that if she said anything, she and her grandmother would "pay for it."
In September 1999, Investigator Johnson interviewed defendant. Defendant told Johnson that C.G. had asked him to go with him to get some beer and take the victim home from a party. C.G. drove T.G.'s car. During the ride, C.G. pulled over to urinate. C.G. and the victim got out of the car while defendant remained in the back seat. Defendant heard two or three shots. C.G. put a gun in his pants, got back into the car, and drove to C.G.'s house. Defendant initially told Johnson he did not know why C.G. shot the victim but, later in the interview, defendant said he found out the next day that J.G. called C.G. and told him to kill the victim because he was a snitch.
Investigator Johnson interviewed defendant again in February 2000. Defendant said J.G. called C.G. at the party and told him the victim was a snitch and to "[d]o what you got to do." C.G. told defendant what J.G. had said, and the two devised a plan to punish the victim. They took the victim for a ride on the pretext of getting drugs. T.F. also came with them.
Defendant again told Investigator Johnson they pulled off the road in a rural area on the pretext they needed to urinate. Defendant stayed in the car while the others got out to urinate. Defendant heard shots fired and saw the victim fall to the ground. C.G. and T.F. got back in the car and C.G. drove them back to C.G.'s house. Defendant claimed he was not aware they were going to kill the victim. He thought they were only going to beat up the victim.
C.G. testified that while he was working as an informant, a detective told him the victim was a snitch. As a consequence, C.G. decided to kill the victim to prevent him from telling anyone about his informant status. Just as C.G. was about to leave a party with the victim, defendant asked if he and T.F. could have a ride. C.G. agreed.
While driving defendant home, C.G. missed defendant's freeway exit and took the next remote off-ramp. C.G. told the others he had to urinate and stopped the car. When he got out of the car, he asked the victim to get out of the car and pick up a bag of "dope" C.G. had dropped there. When the victim got out, C.G. shot him three times. C.G. got back in the car. Defendant yelled at him, and C.G. told defendant if he did not stop, he would shoot defendant too. Defendant and T.F. were in the car when C.G. shot the victim. C.G. dropped off defendant and T.F. and went home.
C.G. testified that when he went home after the murder, he told T.G. he had shot someone and to leave him alone. He did not talk to defendant about the murder in his garage the day after the victim's murder. C.G. claimed he initially lied to Sergeant Thompson about defendant's involvement to avoid going to jail.
Sergeant Thompson testified that C.G. told him he overheard J.G. and defendant say that the victim was a snitch, and the victim needed to be killed. C.G. also said defendant shot the victim in the head, and C.G. shot the victim in the chest. Thompson also testified that T.G. told him C.G. said J.G. called and told him the victim was a snitch, and C.G. and defendant devised a plan to kill the victim.
Defendant testified that at the party, he asked C.G. to give him and T.F. a ride home. C.G. agreed reluctantly. At this point, defendant did not know the victim was a snitch. Neither J.G. nor C.L.G. had ordered defendant to "take care" of the victim. Defendant was unaware the victim was a snitch until investigators interviewed defendant and suggested to him that the victim was a snitch. Defendant and C.G. did not formulate a plan to harm the victim. Defendant thought C.G. and the victim were going to get beer or do something else.
Defendant testified that, when driving defendant home, C.G. missed defendant's freeway exit. C.G. exited the freeway one or two exits later and stopped the car on the side of the road in a rural area. C.G. said he needed to urinate and told the victim to look for some dope C.G. had dropped. C.G. and the victim got out of the car. T.F. stood by the car door, and defendant stayed in the back seat. Defendant heard three shots. C.G. ran back to the car, got in, drove away, and dropped off defendant and T.F.
Defendant denied being in C.G.'s garage when T.G. overheard a conversation about the victim's murder. (People v. Coronado, supra, E040884.)
II.
PROCEDURAL HISTORY
By information, the People charged defendant with one count of first degree murder (§ 187) and alleged defendant personally used a firearm during the commission of the murder (§§ 667, 1192.7, subd. (c)(8), 12022.5, subd. (a)(1)), defendant committed the murder for the benefit of and at the direction of a criminal street gang (§ 186.22, subd. (b)(1)), and defendant intentionally killed the victim while lying in wait (§ 190.2, subd. (a)(15)). A jury convicted defendant of second degree murder but rendered not true findings on the sentencing allegations. The trial judge sentenced defendant to state prison for 15 years to life.
This court affirmed the judgment on direct appeal (People v. Coronado, supra, E040884), and the California Supreme Court denied defendant's petition for review (People v. Coronado, Feb. 27, 2008, S159355).
On January 15, 2019, defendant filed a form petition for resentencing pursuant to former section 1170.95 and alleged he had been convicted of second degree murder under the felony-murder rule or the natural and probable consequences doctrine but that he could no longer be found guilty after the amendments made to sections 188 and 189 by Senate Bill No. 1437 (2017-2018 Reg. Sess.). He also alleged a court or jury had previously determined he was not a major participant and/or that he did not act with reckless indifference for human life under section 190.2, subdivision (d).
The prosecution filed an opposition arguing Senate Bill No. 1437 was unconstitutional and that, in any event, defendant had not made a prima facie showing of relief under former section 1170.95 because he was the actual killer and was a major participant who acted with reckless indifference to human life. Defendant's attorney responded that Senate Bill No. 1437 was constitutional, and defendant had made a prima facie showing for relief.
The trial court issued an order to show cause and set a hearing on the petition. Prior to the hearing, the prosecution filed a brief in which it argued defendant was not entitled to be resentenced because, even after the enactment of Senate Bill No. 1437, he could be properly convicted of second degree murder because the evidence in the record demonstrated he aided and abetted in the commission of the murder with express or implied malice and/or he conspired to commit the murder with express malice.
In support of its brief, the People submitted to the trial court the entire record on appeal from People v. Coronado, supra, E040884.
At the hearing, the trial court indicated it had reviewed the briefs and read several witnesses' trial testimony pertaining to the issues raised by the petition-i.e., the testimony of the investigator, C.G. (the codefendant), defendant, and T.G. The prosecutor and defense counsel submitted on their briefs and introduced no new evidence. Stating "the facts are fairly undisputed," defense counsel argued defendant was merely a passenger in the car, he did not harbor the intent to kill, and he was not a major participant in the crime who acted with reckless indifference. Counsel also argued T.G.'s statement that she overheard defendant admit to being involved in the shooting related to a "different situation" during which defendant had shot someone else. The trial court responded that T.G. had not merely overheard the conversation about the shooting, which had been the subject of much dispute at trial, but she also received information about the shooting directly from C.G.
The trial court indicated it recalled the facts of this case, especially after reviewing the trial transcripts. It then explained that it would consider, based on those transcripts, whether defendant was the actual killer, an aider and abettor who had the intent to kill, or a major participant in the murder who had acted with a reckless indifference for human life. The court acknowledged its role as an independent factfinder and that the People had the burden of proving beyond a reasonable doubt that defendant could be found guilty of second degree murder under the new law.
With respect to defendant's trial, the trial court noted the jury had been instructed on murder under the now-invalid natural and probable consequence doctrine. However, the jury had also been instructed on aiding and abetting (CALJIC No. 3.01) and conspiracy (CALJIC No. 16.140). The jury acquitted defendant of first degree murder, found him guilty of second degree murder, and found not true all sentencing allegations and the lying in wait special circumstance allegation.
The trial court summarized the evidence presented at trial and acknowledged that C.G. testified defendant had nothing to do with the murder. However, the court indicated C.G. "didn't have much to lose" by trying to shield defendant and take full responsibility for the murder because C.G. had already pleaded guilty and was serving a prison sentence of life without the possibility of parole.
The trial court indicated it had reviewed T.G.'s trial testimony and her prior statements and found them to be inconsistent. The court recalled that T.G. had often been nonresponsive and indirect in her testimony, but she had waited many years before coming forward with information about the murder because of threats made against her and her grandmother, who had passed away before she came forward. The court also recalled that T.G. said she had overheard a conversation inside a garage during which defendant said he had shot the victim or had indicated he was involved in the incident. She also testified that in a later a conversation, C.G. admitted that "they both shot the victim."
With respect to defendant's statements to police, he had initially denied having any involvement, saying he just happened to be with C.G. and the victim, but he did not know what was going to happen and he remained inside the car when the victim was shot. However, defendant admitted the victim had been accused of being a snitch and that another member of the gang had ordered "a hit" on the victim that same night. Defendant later made inculpatory statements when he admitted that he and C.G. "had devised a plan" where they would take the victim for a ride on the pretext of getting better drugs, that during the ride they would pull over in a remote area and claim they needed to relieve themselves, and then "do what they needed to do." But, defendant also denied that he knew the victim would be killed and, instead, said he thought the victim might "be roughed up or beaten" as punishment for being a snitch.
The trial court acknowledged the jury had expressly found defendant was not the actual shooter and indicated defendant's liability for second degree murder would have to rest on whether he aided and abetted with the intent to kill or because he acted as a major participant with reckless indifference to human life.
The court found it was clear from the record that defendant had "knowingly intended to assist" C.G. during the incident and "did so in a number of different ways," most prominently by assisting in the plan to take the victim to a remote area "and do harm to him." The question for the court was whether there was evidence defendant acted with express or implied malice. The court indicated the evidence showed defendant was a member of the EVL gang, and a member who was a snitch "needed to be assaulted, at the very least, and, at the very worst, be killed." Moreover, the court said the record "clearly" showed "there was an agreement or a plan to take [the victim] to this remote area," and the coconspirators, who were "involved in the agreement" and who committed overt acts, were bound by any additional acts committed by a coconspirator. From that evidence, the court concluded defendant could be convicted of second degree murder based on an aider and abettor and conspiracy theories.
Finally, the trial court considered whether defendant was a major participant who had acted with reckless indifference. Addressing the factors articulated in People v. Banks (2015) 61 Cal.4th 788, People v. Clark (2016) 63 Cal.4th 522, and In re Bennett (2018) 26 Cal.App.5th 1002, the court found defendant had played a role in planning a criminal enterprise; he was aware of the dangers posed by the nature of the crime because of his gang membership; he was present at the scene of the killing; and his actions played a role in the death by riding along and making a plan to take the victim to a remote area.
The trial court found it was "abundantly clear" that defendant, who was a gang member, went along on the ride with C.G., and the two men conspired to take the victim to a remote area. The court found defendant clearly aided and abetted in the actions that resulted in the victim's death, and defendant and C.G. acted as coconspirators. Therefore, the court ruled the People had proven beyond a reasonable doubt that defendant could be convicted of second degree murder under an aiding and abetting or conspiracy theory, and as a major participant who acted with reckless indifference to human life, and it denied defendant's petition.
After the trial court made the oral statement of its ruling, defense counsel reminded the court that the jury had found the firearm and gang enhancements not true, and counsel questioned whether defendant's gang membership could be considered in the resentencing proceeding. The court responded that it "absolutely agree[d]" the jury had found the firearm and gang enhancements not true, but the court reasoned that merely because the jury found the crime had not been committed for the benefit of a criminal street gang did not mean the court could not consider defendant's membership in the gang "and what happens in a gang culture with respect to a person being a snitch." Counsel responded the jury had the opportunity to find the crime had been gang-related but found otherwise. Thus, counsel argued the gang evidence should not be considered.
The prosecutor asked the trial court to clarify that, acting as an independent fact finder, the court found defendant had aided and abetted in the murder and acted with express or implied malice. The court stated that was merely one of its findings, in addition to finding defendant had been a major participant who had acted with reckless indifference to human life and that guilt could be proven beyond a reasonable doubt on a conspiracy theory.
Defendant timely appealed.
III.
DISCUSSION
A. Resentencing Under Senate Bill No. 1437.
"As relevant here, Senate Bill [No.] 1437 significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent 'to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' [Citations.] . . . [S]ection 189, as amended, now limits liability under a felony-murder theory principally to 'actual killer[s]' [citations] and those who, 'with the intent to kill,' aid or abet 'the actual killer in the commission of murder in the first degree' (id., subd. (e)(2)). Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were 'major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of . . . [s]ection 190.2'-that is, the statute defining the felony-murder special circumstance." (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)
"Senate Bill [No.] 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended." (Strong, supra, 13 Cal.5th at p. 708.) Unless the parties stipulate that the defendant is eligible for resentencing, the court must "hold an evidentiary hearing at which the prosecution bears the burden of proving, 'beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder' under state law as amended by Senate Bill [No.] 1437. (§ 1172.6, subd. (d)(3).)" (Strong, at p. 709.)
At the hearing, the court may consider previously admitted evidence, so long as it remains "admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).) The parties may offer new or additional evidence to meet their respective burdens. "'A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] 'If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.'" (Strong, supra, 13 Cal.5th at p. 709.)
B. Defendant's Preliminary Arguments.
Defendant makes two arguments for reversal of the order denying his petition that may be disposed of easily.
First, defendant contends his acquittal on the charge of first degree murder and the jury's not true finding on the lying-in-wait special circumstance demonstrate the jury found he did not harbor a premeditated intent to kill. According to defendant, that finding was binding on the trial court and the court had erred by denying the resentencing petition based on a finding of express intent to kill. As defendant contends, appellate courts have held a trial court cannot find a defendant may still be convicted of murder under a valid theory, and deny a resentencing petition under section 1172.6, based on a fact the jury expressly found not true. (People v. Cooper (2022) 77 Cal.App.5th 393, 398-418 [jury's acquittal of defendant for being a felon in possession of a firearm precluded trial court from concluding defendant was a major participant in kidnapping and acted with reckless indifference for human life, based in part on his possession of a firearm]; People v. Henley (2022) 85 Cal.App.5th 1003, 1017-1020 [jury's not true finding on sentencing allegation of personal use of a firearm precluded denial of resentencing petition based on finding the defendant did, in fact, personally use a firearm]; People v. Arnold (2023) 93 Cal.App.5th 376, 385-387 [jury's not true finding on sentencing allegation that defendant personally used a knife precluded trial court from denying resentencing petition based on contrary finding that the defendant was the actual killer who stabbed the victim to death]; but see People v. Jones (2022) 86 Cal.App.5th 1076, 1084-1086 &fn. 5 [jury's not true finding on sentencing allegation of personal use of a firearm did not preclude trial court from relying on fact defendant possessed a firearm when it denied resentencing petition]; People v. Wilson (2023) 90 Cal.App.5th 903, 916-918 [jury's inability to render findings on sentencing allegations that defendant personally used and discharged a firearm did not preclude trial court from concluding defendant was the actual killer].)
We need not address the People's argument that defendant forfeited this claim of error by not raising it below.
Assuming without deciding that defendant is correct the jury explicitly found he did not act with the premeditated intent to kill, the record does not clearly demonstrate the trial court relied on such a fact to deny the petition. Instead, the record strongly suggests the trial court found defendant could still be convicted of second degree murder based on an aiding and abetting theory and that defendant harbored the implied intent to kill, not an express intent to kill. And, as discussed further post, we reverse and remand for the trial court to reconsider whether defendant could still be convicted beyond a reasonable doubt based on implied intent.
Second, defendant argues the trial court erred by concluding the record supports a conviction for second degree murder based on theories that were not presented at his trial, viz, that he could be convicted on a conspiracy theory and because he was a major participant who acted with reckless indifference for human life. But, the Courts of Appeal have held that a trial court considering a resentencing petition pursuant to section 1172.6 is not precluded from considering whether the defendant could still be convicted of murder based on a valid murder theory that was not presented at trial. (People v. Duchine (2021) 60 Cal.App.5th 798, 813 ["By allowing new evidence and providing for an evidentiary hearing, the Legislature plainly intended that the issues concerning whether the defendant was guilty under theories of murder not previously or necessarily decided would be resolved anew, through a factfinding process affording a degree of due process to the petitioner."]; People v. Schell (2022) 84 Cal.App.5th 437, 444-445 ["Interpreting section 1172.6 to allow the prosecution to present different theories of guilt at the evidentiary hearing does not implicate constitutional concerns."].)
In Reyes, the Supreme Court declined to decide that issue. (Reyes, supra, 14 Cal.5th at p. 987 ["[W]e express no view on whether a court may deny a section 1172.6 resentencing petition based on a theory of murder not argued by the prosecution at trial."].)
As defendant argues, the trial court's finding that he was a major participant who acted with reckless indifference for human life is simply misplaced because defendant was not convicted of felony murder. (§ 189, subd. (e).) In any event, the People have wisely chosen not to argue there is substantial evidence to support the order based on the conspiracy and major participant/reckless indifference theories. "[W]e decline to address [each of] the trial court's reasons for denying the petition, as we may affirm a ruling that is correct in law on any ground." (People v. Cortes (2022) 75 Cal.App.5th 198, 204.)
C. We Reverse and Remand for the Trial Court to Reconsider Whether Defendant Could be Convicted of Second Degree Murder as an Aider and Abettor.
While Senate Bill No. 1437 eliminated natural and probable consequences liability for second degree murder based on imputed malice, the courts have held that implied malice remains a valid theory of second degree murder liability for an aider and abettor. (People v. Gentile (2020) 10 Cal.5th 830, 850 (Gentile) ["an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life"]; People v. Rivera (2021) 62 Cal.App.5th 217, 232 ["[A] person may still be convicted of second degree murder, either as a principal or an aider and abettor, 'if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.'"]; People v. Offley (2020) 48 Cal.App.5th 588, 595-596 [Senate Bill No. 1437 did not "alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily 'know and share the murderous intent of the actual perpetrator.'"]; see Reyes, supra, 14 Cal.5th at p. 990 ["Case law has recognized and applied this theory, and we see no basis to abrogate it."].)
A defendant can be convicted of second degree murder "only if the prosecution can prove the defendant acted with the accompanying mental state of mind of malice aforethought. The prosecution cannot 'impute[] [malice] to a person based solely on his or her participation in a crime.'" (Gentile, supra, 10 Cal.5th at p. 846, quoting § 188, subd. (a)(3).) Second degree murder under a direct aiding and abetting theory "requires that 'the aider and abettor . . . know and share the murderous intent of the actual perpetrator.'" (Gentile, at p. 850; accord, People v. Cravens (2012) 53 Cal.4th 500, 508.)
"'[D]irect aiding and abetting is based on the combined actus reus of the participants and the aider and abettor's own mens rea. [Citation.] In the context of implied malice, the actus reus required of the perpetrator is the commission of a life endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.'" (Reyes, supra, 14 Cal.5th at pp. 990-991.)
We review the trial court's factual findings for substantial evidence. (Reyes, supra, 14 Cal.5th at p. 988; People v. Clements, supra, 75 Cal.App.5th at p. 298.) "Under this standard, we review the record '"'in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"'" (Reyes, at p. 988.) We will not reverse unless there is no hypothesis upon which sufficient substantial evidence exists to support the trial court's decision. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "An appellate court must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
"[I]mplied malice murder requires attention to the aider and abettor's mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim." (Reyes, supra, 14 Cal.5th at p. 992.) "Aiding and abetting may be shown by circumstantial evidence. It is well settled that the presence at the scene of the crime and failure to prevent it, companionship and conduct before and after the offense, including flight, are relevant to determining whether a defendant aided and abetted in the commission of the crime." (People v. Glukhoy (2022) 77 Cal.App.5th 576, 599.) Other relevant circumstances include "the victim's vulnerability, the number of assailants, the ferocity and duration of the attack, . . . the unusualness or unexpectedness of the victim's death" (People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 502) and the defendant's motive (Glukhoy, at p. 599). "Giving a false statement evincing consciousness of guilt is another circumstance tending to prove aiding and abetting." (Id. at p. 602.)
There is essentially no dispute that the record establishes defendant was aware that a hit had been ordered on the victim for being a snitch, and that defendant and C.G. made a plan to take the victim for a ride under the pretext of getting more and better drugs, that they would stop in a secluded area and claim they needed to relieve themselves, then "do what they needed to do." The circumstances of the crime, in which the victim was placed in a vulnerable position in an isolated location and he was completely outnumbered and essentially ambushed, tend to support the inference that defendant had the implied intent to kill. There is also no dispute that defendant was present on the scene when C.G. shot the victim, defendant did nothing to stop it, and defendant fled the scene with C.G. and the other passengers of the vehicle after the shooting.
As he did in the trial court, defendant argues there is no solid evidence in the record that he knew C.G. was armed and C.G. would shoot the victim. He argues the evidence establishes, at most, that he knew the victim would be physically assaulted for being a snitch. True, the People's gang expert testified a snitch or police informant might be neutralized with something short of murder, such as a severe beating. Also true, C.G. testified he alone was responsible for the murder, and defendant did not know exactly what was going to happen. But this ignores T.G.'s statement that she overheard a conversation in which defendant admitted to being involved in the shooting ("we got him") and her statement that C.G. told her he (C.G.) and defendant shot the victim and she had better keep that information to herself. Indeed, during one interview with the police, C.G. reported defendant himself said the victim "had to be killed." From these statements, a reasonable trier of fact could conclude beyond a reasonable doubt that defendant did, in fact, know C.G. intended to shoot the victim and not merely rough him up.
As the trial court indicated, the evidence in the record about the EVL gang and its activities, defendant's membership in the gang and his association with other members of the gang, and of gang culture in general support the conclusion that defendant harbored the implied intent to kill the victim, and he actively assisted C.G. in the killing. Although defendant testified he was no longer an active member in the gang at the time of the murder, the jury was free to believe otherwise. And, although the jury rendered a not true finding on the allegation that the murder was committed at the direction of and for the benefit of the gang, that did not preclude the trial court or this court from considering evidence that the killing was committed with a fellow gang member and that the crime was related to the gang and gang culture. (See People v. Jones, supra, 86 Cal.App.5th at pp. 1084-1086 &fn. 5.)
Finally, evidence of defendant's motive tends to support the trial court's findings. To remain an active member of the gang and maintain his standing, defendant needed to commit crimes and "put in work" for the gang. Taking care of a snitch, such as the victim, would constitute "putting in work" for the gang. Not doing so would have made defendant appear weak. Again, that the jury found the crime was not committed for the benefit of the gang does not preclude us from considering that defendant acted for his own benefit. (People v. Jones, supra, 86 Cal.App.5th at pp. 1084-1086 &fn. 5.)
However, as indicated, the trial court found defendant could be convicted of second degree murder based on multiple theories, and the court made statements on the record that seemed to indicate the court misunderstood or conflated the elements for each theory. Given the intervening decision in Reyes, supra, 14 Cal.5th 981, which clarified the legal requirements for second degree murder on a theory of aiding and abetting an implied malice murder, we remand for the trial court to reconsider whether defendant could be convicted under that theory.
IV.
DISPOSITION
The order denying defendant's resentencing petition is reversed, and the matter is remanded for the trial court to reconsider whether defendant could be convicted beyond a reasonable doubt of second degree murder on a theory of directly aiding and abetting an implied malice murder.
We concur: RAMIREZ P. J. RAPHAEL J.